Custody is an aspect of parental authority. The person who exercises parental authority over the child has custody over the said child. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law. There are different rules for the custody of legitimate and illegitimate children.
CUSTODY OVER ILLEGITIMATE CHILDREN
Children are those conceived and born outside a valid marriage. The rules are relatively much simpler when it comes to custody and parental authority over illegitimate children — custody is with the mother. This rule applies whether or not the child is a minor. The father has visitation rights, as discussed below.
CUSTODY OVER LEGITIMATE CHILDREN
In general, parental authority (including custody) over legitimate children is shared by the father and mother. The Family Code provides that the father and the mother shall jointly exercise parental authority over the persons of their common children.
In case of separation of the parents, parental authority shall be exercised by the parent designated by the court. The court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. In other words, no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. [See Basic Issues in Child Custody]
CUSTODY OVER MINOR CHILDREN
As noted above, no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. In all controversies regarding the custody of minors, the sole and foremost consideration is the physical, educational, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the contending parents.
The law, however, favors the mother if she is a fit and proper person to have custody of her children so that they may not only receive her attention, care, supervision but also have the advantage and benefit of a mother’s love and devotion for which there is no substitute. Generally, the love, solicitude and devotion of a mother cannot be replaced by another and are worth more to a child of tender years than all other things combined. [See also Infidelity of the Mother in Child Custody Cases]
DISAGREEMENT, DEATH, ABSENCE OF PARENTS
- In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary.
- In case of absence or death of either parent, the present or surviving parent present shall continue exercising parental authority.
- In case of death, absence or unsuitability of both parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.
SUSPENSION OF PARENTAL AUTHORITY
Parental authority is automatically suspended upon conviction of the parent or the person exercising the same of a crime which carries with it the penalty of civil interdiction. The authority is automatically reinstated upon service of the penalty or upon pardon or amnesty of the offender.
On the other hand, parental authority may be suspended by the court, in an appropriate case where the parent or person who has parental authority:
- 1. Treats the child with excessive harshness or cruelty.
- 2. Gives the child corrupting orders, counsel or example.
- 3. Compels the child to beg.
- 4. Subjects the child or allows him to be subjected to acts of lasciviousness.
These grounds are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority.
The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefor has ceased and will not be repeated.
TERMINATION OF PARENTAL AUTHORITY
Parental authority of either or both parents may be terminated or suspended by order of the court. The grounds for permanently terminating parental authority are:
- 1. Death of the parents.
- 2. Death of the child.
- 3. Emancipation of the child.
- 4. When a person exercising parental authority has subjected the child or allowed him/her to be subjected to sexual abuse, such person shall be permanently deprived by the court of such authority.
Custody and parental authority may also be terminated, subject to revival by the court in a proper case, in any of the following instances:
- 1. Upon adoption of the child.
- 2. Upon appointment of a general guardian.
- 3. Upon judicial declaration of abandonment of the child in a case filed for the purpose.
- 4. Upon final judgment of a competent court divesting the party concerned of parental authority.
- 5. Upon judicial declaration of absence or incapacity of the person exercising parental authority.
VISITATION RIGHTS OF THE FATHER
Visitation right, in family law, is the right granted by a court to a parent or other relative who is deprived custody of a child to visit the child on a regular basis. The details of visitation rights are determined by the court. In certain instances, as in the case of violence against women and their children, the father is deprived of visitation rights. [See Republic Act No. 9262]